THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLANT, VS. ELISEA YLAGAN, DEFENDANT AND APPELLEE.

Against
the appellee, Elisea Ylagan, a complaint for physical injuries was
filed in the justice of the peace court of Batangas, Province of
Batangas. After preliminary investigation, the case was forwarded to
the Court of First Instance, where the provincial fiscal filed an
information charging her with serious physical injuries. Upon
arraignment, the defendant pleaded not guilty to the information;
whereupon the private prosecutor, with the concurrence of the deputy
provincial fiscal, moved for the dismissal of the case, which motion
was granted by the court. The attorney for the defendant said nothing
about the dismissal of the case.

Eleven days later, the
acting provincial fiscal filed another information in the same justice
of the peace court, charging the same defendant with the same offense
of serious physical injuries. After another preliminary investigation,
the case was again forwarded to the Court of First Instance, where the
information filed in the justice of the peace court was reproduced.
Upon arraignment, the defendant entered a plea of double jeopardy,
based on section 28 of the Code of Criminal Procedure. After a hearing,
the court sustained the plea and dismissed the case. From this order of
dismissal, an appeal was taken by the Government.

Section 28 of the Code of Criminal Procedure reads as follows:

“A
person cannot be tried for an offense, nor for any attempt to commit
the same or frustration thereof, for which he has been previously
brought to trial in a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, after issue properly joined, when
the case is dismissed or otherwise terminated before judgment without
the consent of the accused.”

It seems clear
that under the foregoing provisions of law, a defendant in a criminal
prosecution is in legal jeopardy when placed on trial under the
following conditions: (1) In a court of competent jurisdiction; (2)
upon a valid complaint or information; (3) after he has been arraigned;
and (4) after he has pleaded to the complaint or information. Tested by
this standard, we are of the opinion that the appellee has been once in
jeopardy for the offense for which she is now prosecuted. It is true
that in United States vs. Ballentine (4 Phil., 672; 1 Philippine Decisions 575, and in other subsequent cases, including People vs. Belisario (G. R. No. 33416),^[1]
this court has held that there is no jeopardy until the investigation
of the charges has actually been commenced by the calling of a witness;
but we are now convinced that such a view should be abandoned. There is
no provision or principle of law requiring such a condition for the
existence of legal jeopardy. All that the law requires is that the
accused has been brought to trial “in a court of competent
jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction, after
issue properly joined.” Under our system of criminal procedure, issue
is properly joined after the accused has entered a plea of not guilty.
The mere calling of a witness would not add a particle to the danger,
annoyance, and vexation suffered by the accused, after going through
the process of being arrested, subjected to a preliminary
investigation, arraigned, and required to plead and stand trial.

The rule against double jeopardy protects the accused not against the
peril of second punishment, but against being again tried for the same
offense. This is the principle underlying both section 23 and section
28 of the Code of Criminal Procedure. Commenting on said section 23,
this court, in Julia vs. Sotto (2 Phil, 247, 252, 253), said:
“Without the safeguard this article establishes in favor of the
accused, his fortune, safety, and peace of mind would be entirely at
the mercy of the complaining witness, who might repeat his accusation
as often as dismissed by the court and whenever he might see fit,
subject to no other limitation or restriction than his own will and
pleasure. The accused would never be free from the cruel and constant
menace of a never-ending charge, which the malice of the complaining
witness might hold indefinitely suspended” over his head, were it not
that the judiciary is exclusively empowered to authorize, by an express
order to that effect, the repetition of a complaint or information once
dismissed in the cases in which the law requires that this be done.
Such is, in our opinion, the fundamental reason of the article of the
law to which we refer. Thanks to this article, the accused, after being
notified of the order dismissing the complaint may, as the case may be,
either rest assured that he will not be further molested, or prepare
himself for the presentation of a new complaint. In either case, the
order gives him full information as to what he may hope or fear, and
prevents his reasonable hopes from being dissipated as the result of an
equivocal and indefinite legal situation. To this much, at least, one
who has been molested, possibly unjustly, by a prosecution on a
criminal charge, is entitled.”

Counsel for the government,
however, contends that the previous case brought against the appellee
was dismissed with her consent, on the theory that the phrase “without
the consent of the accused”, used in section 28 of the Code of Criminal
Procedure, should be construed to mean “over the objection of the
accused” or “against the will of the accused”. We can not accept such a
theory. We believe it a sound rule to lay down, that the mere silence
of the defendant or his failure to object to the dismissal of the case
does not constitute a consent within the meaning of section 28 of the
Code of Criminal Procedure. The right not to be put in jeopardy a
second time for the same offense is as important as the other
constitutional rights of the accused in a criminal case. Its waiver can
not, and should not, be predicated on mere silence.

The order appealed from is affirmed, with costs de oficio. So ordered.

Avanceña, C. J., Street, Vickers, and Butte
, JJ., concur.

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^[1] Promulgated December 2, 1930, not reported.